The Joint Committee on Human Rights has
agreed to the following Report:

PROCEEDS OF CRIME BILL: FURTHER REPORT

Introduction

1. In our Third Report, in November 2001, we reported
our provisional view as to the human rights implications of the
Proceeds of Crime Bill.[1]
We had raised a number of questions and concerns with the Home
Secretary. We have since received a reply, in the form of a memorandum
from the Home Office, sent on 7January 2002. We are
grateful to those who prepared the memorandum for the clarity
with which the Home Office's position is set out. The letter from
the Committee, and the Home Office memorandum in response, are
printed in the appendix to this report.[2]
We now report on our further consideration of the Bill in the
light of the Home Office memorandum. This report should be read
in conjunction with our Third Report.

The Matters raised with the Home Office

2. Matters relating to confiscation orders following
convictions of offences. Generally, we considered that it
would be possible to operate the provisions relating to confiscation
orders following convictions in a manner compatible with Convention
rights. None the less, we reported that we had put a number of
questions to the Home Secretary in relation to certain concerns
about the human rights compatibility of these aspects of the Bill.
In particular, we had asked the Home Secretary

- whether he thought that there would be advantages,
in terms of legal certainty, if the statutory assumptions which
the Bill would require to be made when a court is deciding whether
to make a confiscation order following a conviction of an offence,
were the Bill expressly to incorporate the constraints necessary
to ensure that the process would be compatible with ECHR Article
6;[3]

- whether he thought that the requirement of
proportionality was likely to be met whenever a court was under
a duty to make a confiscation order following conviction of a
crime other than a drug trafficking offence, particularly when
the ground for making an order is that the defendant has a criminal
lifestyle;[4]

- why no express provision was made for England
and Wales or Northern Ireland equivalent to the protection offered
in Scotland to members of a convicted person's family against
confiscation of the family home in certain circumstances.[5]

3. Matters relating to the proposal for a new
civil recovery procedure. In relation to the parts of the
Bill dealing with the proposal for a new civil recovery procedure
for suspected proceeds of crime, we took the view that the procedure,
although nominally and procedurally civil, would be likely to
be treated as involving a 'criminal charge' for the purpose of
applying ECHR Article 6, both in international law and under the
Human Rights Act 1998.[6]
In the light of this, we had asked the Home Secretary

- why he thought that preventing a person from
using his or her property to pay for legal assistance, where the
property would otherwise be the subject of civil recovery proceedings,
would be compatible with the right to defend himself through legal
assistance of his own choosing, under ECHR Article 6(3)(c);[7]

- whether he wished to comment on our view that
there was a significant risk of the retrospective operation of
the civil recovery procedure violating the right not to be penalized
for an act or omission which had not at the time constituted an
offence, under ECHR Article 7.[8]

4. We now consider the views expressed about each
of these matters in the Home Office memorandum